Both content creators and copyright owners must be aware of one of the exceptions to Canada’s copyright law, which is fair dealing or fair use in YouTube
Updated 02 May 2024
The trend in social media now is that online content is rapidly moving toward video. Whether it be on Facebook, X (previously Twitter), YouTube, and Instagram, especially with the rise of TikTok.
On the legal side, this sheer volume of video being created, uploaded, and shared online will significantly change the landscape in the world of copyrights and, specifically, fair use.
In this article, we’ll be discussing the Canada’s intellectual property (IP) laws including its exceptions, one of which is the fair dealing or fair use in YouTube.
This article may be used by IP rights lawyers as an educational piece for their clients, or by curious influencers or content creators looking for resources on YouTube’s fair use policy.
Video’s engaging nature and significantly higher conversion rates are attractive alternatives to plain text for websites looking to engage and retain visitors. Especially in the world of YouTube, where currency is made up of subscriber count, views, and retention, as these garner higher advertising rates.
However, content creators, key opinion leaders, and influencers must be aware of two things:
As such, the doctrine of fair use is becoming more prevalent on both YouTube and video content on the web.
This does not only apply to content creators, but to copyright owners as well, who will need to reevaluate what to consider infringement.
Fair use is the reproduction or use of copyrighted material for a limited and transformative purpose, specifically to comment upon, criticize, or parody a copyrighted work.
This use of copyrighted work does not require permission from the copyright owner and is a defence against a claim of copyright infringement.
So how does fair use in YouTube work? For example, when a YouTuber creates their own content, they may use a variety of other copyrighted original sources, such as:
Under the fair use doctrine, these copyright-protected materials can be used without permission or consent from the copyright holder. However, for a creator’s use of copyrighted material to be covered by fair use, it must come under the exceptions of the country’s copyright laws, according to YouTube.
Before exploring the fair use exception under Canadian IP laws, it’s important that emerging content creators first understand the general rule.
Among the different types of intellectual property in Canada is a copyright, which is regulated by the federal law called Copyright Act.
A copyright is a person’s right, which can be bought or granted by a copyright holder, to reproduce the original work of another, in any form or any substantial part of it. Under the Act, a copyright may cover any:
As such, if a content creator’s use of copyrighted material does not fall under the fair use (or fair dealing) exception, they may be charged for copyright infringement.
This is also in addition to other sanctions that may be imposed by the social media platform, such as the removal of the content, or banning the user from future uploads.
The exceptions to copyright infringement can also be found in the Copyright Act. However, instead of ‘fair use’ as used by US and other countries, the Act uses the concept of ‘fair dealing.’ There are differences between these two concepts, especially on the different purposes to be exempt from copyright infringement. This again goes back to the importance of knowing domestic IP laws if one’s business regularly deals with copyrighted materials, such as in content creation.
Under the Copyright Act, the following purposes fall under the fair dealing exception:
In other words, if an uploader uses copyrighted material for any of these purposes, there is no need to get the consent of the copyright holder.
As for criticism, review, and news reporting, the law says the source must be mentioned. This must include the name of the author, performer, maker, or broadcaster, if given in the source.
Another exception under the Copyright Act, which is very relevant to YouTube’s fair use policy, is the “non-commercial user-generated content” exception.
Also known as the mash-up exception or YouTube exception, it provides for standards that a creator must meet so that it would be exempted from copyright infringement.
These standards are:
When the creator’s use of copyrighted material – for example, for their YouTube video – does not meet these standards, it will then be considered as copyright infringement.
In the case of CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada established these factors in assessing whether a dealing is fair or not:
Although this is not an exhaustive list, and will not appear in every fair dealing case, the Court says that it is still a useful framework in determining fairness in future cases.
As a copyright owner, there are a variety of tools called copyright management tools to manage and enforce one’s rights on YouTube:
When there’s a valid violation of YouTube’s fair use policy, it will remove the video from its platform, or prevent the violator from uploading their video.
YouTube says that domestic rules are also considered when responding to copyright removal requests under these following copyright management tools.
For instance, adding an advertisement on a video that uses copyrighted material may be a violation of the YouTube exception of Canada’s Copyright Act because it was used for commercial purposes.
Let’s go over the copyright management tools that YouTube uses:
First, copyright owners can use YouTube’s Content ID system, which identifies and manages their content on the platform.
Any time a video is uploaded to YouTube, it is automatically scanned against a database of copyright-protected files submitted by copyright owners.
In the event of a match, the uploaded video is flagged, and the copyrights holder has a variety of options depending on their Content ID settings, such as:
YouTube says that these options may also apply differently in every country. In one country, the video can be monetized, while it may be blocked in another.
This video further explains the Content ID system under YouTube’s fair use policy:
Check out our practice area page on Intellectual Property for more resources, such as actual infringement cases and updates on Canadian IP laws.
The copyright holder may also submit a copyright claim using YouTube’s submission process.
Submitting a copyright removal request can be done through YouTube’s website, or through the copyright holder’s YouTube Studio.
Once relevant information is submitted, including demonstrating proof of ownership of the alleged work that was infringed, YouTube will issue a copyright strike on the infringing party.
Among the possible consequences of a copyright removal request are:
In the event of a strike, a creator or channel owner has three options:
The retraction can be based on a variety of reasons, such as fair use for YouTube videos. Both parties may also negotiate on their own terms for retracting the copyright removal.
With a counter notification, the strike will likely be retracted by YouTube, unless the copyright claimant files a lawsuit seeking an injunction to keep it offline.
While creators will often cite fair use in counter notifications, the concept is quite complex and requires significant legal analysis. This also makes it very difficult for a content creator to fully appreciate what constitutes fair use.
It’s important to consult an IP lawyer to be sure that they’re under the exceptions of fair use or fair dealing.
Once eligible, copyright owners may also use the Content Verification Tool (CVT) found in their YouTube Studio Content Manager.
It works similarly with copyright removal requests, plus an added feature of searching public YouTube videos for content which violates the owner’s copyrights.
Once a video is found that matches the owner’s content, a copyright removal request can be submitted through the CVT.
There are consequences to copyright owners who use any of the copyright management tools, if their claims are later found to be baseless, or if it validly falls as fair use in YouTube. This is why copyright owners must also be familiar with YouTube’s fair use policy before issuing notices or removal requests.
A classic example would be the case of Stephanie Lenz, who uploaded a 29-second home video of her children in the family kitchen dancing to the Prince song “Let’s Go Crazy” in 2007.
Universal Music Corp. sent a takedown notification to YouTube. Lenz sent a counter notification claiming fair use. She later sued Universal, alleging misrepresentation under the Digital Millennium Copyright Act of the US.
The appellate court affirmed the district court’s summary judgment. It held that, before sending a takedown notice under the DMCA, a copyright holder must first evaluate if the alleged unauthorized performance constituted fair use.
Lenz and Universal agreed to a settlement in 2018.
This case has changed the landscape of YouTube and online video content, where claimants would often send automated DMCA notices. Now, parties need to demonstrate that fair use was considered first, before a notice can be sent to the alleged copyright infringer.
Aside from court battles that may arise between parties, the internal policy of YouTube on fair use will also affect the copyright holder who wrongly sends a claim or notice.
The platform strongly reminds copyright owners to be careful before submitting a removal request, by evaluating first if fair use applies.
Copyright owners who repeatedly submit false claims, or have submitted false information, may face the consequences of:
As for the uploaders of alleged infringed videos, YouTube allows them to dispute a Content ID claim. It may still be based on the grounds of:
Disputes may be sent through the uploader’s YouTube Studio account.
To get more help when dealing with issues on fair use in YouTube, reach out to the best intellectual property lawyers in Canada as ranked by Lexpert.
